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tv   [untitled]    August 19, 2012 3:00pm-3:30pm PDT

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>> good morning and welcome to the continued special session of the ethics commission relating to the charges against share of
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perini. i wanted to start with going over my proposed schedule for how we will proceed. we would first like to hear the closing argument from the attorneys. from the mayor's side, have you decided whether -- how much you want to use up front, and how much you want to use, if any, in rebuttal? >> 40 minutes of fraud, five minutes for rebuttal. the cracks during the courses -- the course of this, i suspect that kñpáájuárjááhu)s& have questions for you. expect to be interrupted. this is obviously for usb we can get a good handle on where your positions are and how we can get a handle on that. after that, we would like to take public comment on this
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agenda item. public comment will be strictly limited to two minutes per person. i know their work -- are a lot of people who would like to give public, and and we look forward to those comments, but because of the volume, we are going to limit it to two minutes and i will instruct the staff to turn off the microphone after two minutes. you will get a warning beep that will give you 30 more seconds to wrap up your comments. after that, i intend to take a lunch break, following which, we will deliberate. the commission will address the factual and legal issues that have been put before us, and hopefully, we will come out with a recommendation for the board at the conclusion of today. in addition to the oral
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findings, we should discuss whether we want to have some written findings. i think one idea is for the attorney for the commission, mr. m village -- mr. emblidge, to write our findings for the day. and then for us to be there adopt a summary in advance, or to meet again to officially adopt the summary of our oral findings today. but i would expect any right up would merely be a summary of what we have already found, not in the new bases for our findings. those are the things i hope to address. before we start with attorney argument, let me take the role commissioner said the.
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commissioner of view. commissioner hayon. commissioner rennie. all commissioners are here. let's begin with the mayor. >> good morning, commissioners. i have prepared a closing argument in anticipation of not being interrupted, by understanding this change. we have a compressed amount of time. i will do my best to cover the main points and answer your questions as well. let me proceed. on march 19th, 2012, the city and county of san francisco and the sheriff's department faced an intolerable situation. its share of mercury had just been correct -- convicted of a
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crime and had just been sentenced to three years of preparation out of his four-year term in office. he was convicted of a fine -- a crime of false imprisonment what at the same time having the duty to lawfully imprisoned the prisoners at the county jail. moreover, it was a crime of domestic violence. it was a crime involving the relationship of trust in a marital relationship. any crime involving the violation of trust raises questions about whether an individual can carry out the trust that comes to public office. faced with these facts, the mayor acted. the mayor asked the sheriff to resign. he did not. the mayor there for filed these charges. but that ultimately brought us to today. under the law before the commission, the official misconduct in our charter --
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provision in our charter, and the case law in california supreme court, you have heard similar provisions under state law and under the evidence presented to this commission, under the common sense and wisdom of the commissioners and for what is right, not for the share suburban and for our city, -- for the shares department and for our city, we ask you to sustain these charges. the commission has received a great deal of evidence in this case. most of it has come from the mayor and has been unchallenged. the mayor presented nine witnesses to witness and britain have to marry. the sheriff -- through written testimony and witnesses. the sheriff has only chosen to cross-examine two of them. the facts are not difficult to understand in this case. i will go over them in a moment. but first, i want to address the
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law that the commission is going to have to apply and address specific questions that the commission has asked the parties to address in interpreting the charter. the legal basis for removal is met. the sheriff seems to argue that even if i acted wrongfully and terribly under the law, a technicality permits me to continue in office. that is not the case. i have prepared for the commission something akin to the jury instructions one might have before a civil trial. if i could prevent -- if i could ask my counsel to provide this to the other side as i provide a copy to the commission. >> you may want to zoom in on that a little bit. >> i will. the >> thank you.
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-- >> thank you. >> what this document is, it is the first sentence of our misconduct charter provision. the commission was presented with option 1 and option two in the last hearing. this is very close to option two. the big question i have sat out and the answer is, does the official misconduct have relation to the duties in office? it does. but the dispute is not about that. it is about what that relationship is. that is what the legal argument the sheriff is making is hinging on. the share of claims it is not there, but it is. -- the sheriff claims that it is not there, but it is. >> is unsure reading of option two really too restrictive -- it
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may make no difference in this case, but as i read it, it is talking in the destructive -- disjunctive. the first talks about the conduct relating to the offense itself. the second says that conduct below the standard of decency, good faith, and right action impliedly required of all public officers. there is nothing in that clause that says the misconduct has to relate to the office. for example, you would agree, would you not, that if a member of the board of supervisors became aware that another member was engaged in child molestation, which clearly has no relationship to his office, but chose not to disclose it and to cover it up, that would constitute a violation oflp the
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official misconduct act? >> that is an issue that i am glad is not before us today because it presents a very troubling question. we have serious misconduct that reflects on the moral and ethical judgment of an officer. and has a duty to report that. there's obviously a duty implied under law based on the trust that individual holds toward that -- toward the city to maintain the standard of conduct of the body. the reason why that seems like such a difficult hypothetical to us is because it is hard to say, well but supervisor has this other job. but if you look at the trust that supervisor is supposed to hold, that is part of what the supervisor is supposed to do. even in situations like that, they do nevertheless relate to the duties of office.
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in this particular case, it would seem to relate to the trust that supervisor holds in office. in this case, we have a relationship between the fact that the misconduct is a crime, and of course, the sheriff isñin law enforcement and there are consequences related to law enforcement. it is not a tough question whether the relationship test is met here. whether the official misconduct 9csprovision would capture all f the reprehensible conduct that we think our officials should not be engaged in, that is a question, perhaps, for amendment. in >> but isn't it a fair reading -- of the drafters were focusing on two things, one is come up performance in office and misconduct relating to that -- one is, performance in office and misconduct relating to that. the other is the kind of conduct
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that any public official ought to abide by. >> i'd think the greater includes the lesser. the duties of office include that ethical code. part of the duties of office and the relationship of duties of authors -- of office is maintaining that of the gold standard. someone could look at the main clause and say, what is wrong for behavior by a public officer? it is not upholding what we expect by a particular officer. and the use of the wording tells us that includes things like conduct that falls below the decency standard. it is not limited to that, nor is it limited to of a mandatory duty. it is related to the office -- the duties of office, including these things. >> do you agree that it is eight two-step process that we have to deal with? one is, wasb
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misconduct? and two, did the mayor acted reasonably in exercising his discretion? >> that goes to the question of whether there is a minimum level of wrongful behavior that we have to have. for example, jaywalking. that is wrongful, but does that mean that an official should be removed? that is a tough question. it is doubtful that the people that wrote the charter intended that. and fundamentally, we have the decision that the board of supervisors has to make, essentially, knowing the consequences that the sheriff will be removed, is that an appropriate consequence? they do have to make the determination of whether the consequences are appropriate. here, this case is so wrong for that there is no question that the consequences are
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appropriate. >> but you agree that it is 82- step analysis. if we were to find there were no -- it is okaa two-step analysis. if we were to find it was no misconduct, then it would end there. or if we were to say, yes, it was official misconduct, but we think that removal of office is an unreasonable discretion of office. isn't it a two-step process? >> that has wandered -- one of the things under the separate section of official misconduct involving moral turpitude. what is mandatory when that happens? in that instance, the mayor must remove. the mayor has no discretion. but nevertheless, it goes to this body to decide whether it
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warrant removal. there is a judgment to be made by this body. certainly, the severity does matter. but here, i do not think thebñ commission gets to grapple with that question because the conduct is so severe. >> you agree that we can decide it is official misconduct, but make whatever recommendations to the board we think is correct. if we think removal is too significant a penalty for the act, do you agree it is within our discretion to make a recommendation to the board that he not be removed from office? >> i think that this bodies recommendation to the board does embody a judgment about whether or not the share should be removed yes, i think this commission could theoretically find that there is some level of misconduct that meets the definition, but nevertheless, does not warrant removal.
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i do not know how sensible it is to treat that as a two-part analysis. what is wrong for conduct in relation to the duties of office? that suggests that we are measuring the severity of the office. -- the severity of the duties of office. >> i do want to go back briefly to the point that commissioner renne was raising. what he was suggesting in the interpretation of the charter, it was more akin to option one. i understand your view of option 1, that it would be unconstitutionally vague. >> not that it would be unconstitutional, but yes, that interpretation would probably not give sufficient notice of the conduct that it prohibited. on the other hand, the interpretation that saves it is,
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well, you measure that conduct by the standards of that particular office. the rules of that particular statute always saves the statute. that is how, in general, these things are interpreted. >> but as far as your position of what you have hopefully labeled the conduct clause, it must relate to the duties of office. you do not think that we should interpret the charter provision, the contract clause of the charter provision to not have the duties of the provision of office. you think there should be some connection. >> of course, but with the proviso that the task is not difficult to meet and it should be very broad. the sheriff's basically says that this relationship test that we have been discussing, well, the charter must have a
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provision that the sheriff cannot commit a crime. is there any 5 duties of the charter. it is not here. therefore, it is not official misconduct. that argument does not make any sense. i do not think anyone would argue that the charter meant to allow an official to do anything on the job, no matter how wrongful, that if it was not spelled out as a particular duty and a statute that you could not violate, that it would not work give rise to official misconduct. that does not make any sense. the california supreme court said in the cranston case dealing with the police officer who engaged in reckless driving while off-duty, it up held the determinate -- it up held the termination of that officer. it said, the public has the right to expect police officers to obey the law, whether on duty or off duty.
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when police officers violated law that they were hired to enforce, they do so at their own peril. that relationship existed there, and it is the same relationship here. this test is fully satisfied. it is conceivable that there are situations where it could be terrible conduct and it could be a much harder question. but this is not one of them. >> let me ask about cranston. cranston talks about the specificity may be provided by the common knowledge and understanding of a particular vocation or profession. you are using that to suggest that the particular vocation that we should have in mind are law enforcement officials. do i have that right? >> yes. >> but one i'm looking at the charter provision, the language, to me, it's pretty clear. if people intended multiple standards, i think they would
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have used the plural, standards. i think it is one standard. the vocation that we need to evaluate our not sheriff's or law enforcement, but public officers. we have not heard a lot of expert testimony about what the standard is for public officers, but presuming there is one, that seems to be the standard we need to apply, not the standard that applies to police officers. >> let me respond in two ways. the question of what all means. does it mean each, or every? >> is the net more about whether it is standard or standards? if they intended multiple standards, why would they not used the plural? >> a provision that governs the conduct of all state employees, a similar language is used,
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regardless of whether it is a correction officers, lawyers, park rangers, maintenance -- the same standard is used and it applies to all of them. the same language is used in those statutes. nevertheless, the court used it to interpret that it means it is what applies to that particular office. it makes sense. the other issue is that the lowest standard of decency is one of the standards that the commission will apply. that is why the use of the word "including" is so important. when we talk about wrongful behavior by a public officer in relation to the duties of his or her office, that encompasses professional standards. we still have a professional standard that applies to the person in office. and we want to make clear that there is a baseline standard of decency that applies. the court says that baseline standard, in any case, has to be
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interpreted in relation to the office. but it is a separate provision. the larger definition that includes these things is an example. when the voters enacted this, they envision there is a standard of decency that has to be met by everybody in public office. we want to make sure that it is in there. but as a practical matter, meeting the professional standard, that is one of the basic duties. if you did not have the word " including" in here and all of the text that follows it, the idea of professional standard would still be embodied in the general definition. these are just illustrations. these are two different standards that could apply as a practicallp matter. as a constitutional matter, we apply the professional standard to that clause. gregg's you think everything that -- the myriad of examples of what constitutes professional
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behavior by a public officer. >> i do not want to say. , but -- i do not want to say nereid, but broad. our brief explains this in greater detail about why we think this makes sense. i want to talk about one of the other legal arguments that the sheriff makes. this relates to the timing of the misconduct. we can look at the official misconduct and break it down into the elements. let me pass along to the commission another jury- instruction type of document. it breaks down official misconduct into its elements.
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all right, what we're doing is taking the general definition of misconduct at the beginning of the first sentence of our definition of official misconduct in the charter. we break it down into the four elements of official misconduct. the sheriff has made an argument that because he committed his misconduct -- or initiated his misconduct a week before his inauguration, that does not count. our response to that is simple. it may have been a week before the inauguration, but two months after the election. that is what is significant. the definition of the misconduct answers the shares claim. it says what it means.
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and the second part of that, by a public officer. there is no statement in the charter about what the definition of public officer means. but there is no reason to restrict who a public officer is and say that it clear -- it includes elected officials, but only after they're sworn in. the reason for this is the very purpose of the official misconduct provision. provision is meant to deal with wrongdoing that comes up after the voters have voted, hour after an official has been appointed to their position. it when the voters went to the polls nov., 2011, and a marked their ballots, they did not say, i am casting a vote to -- casting a vote for a share of that has committed domestic violence. these things came to light after the election. it is the very situation that official misconduct provisions in our city and elsewhere are meant to deal with. >> it may well be that the second portion of its deals with that question.
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but the first portion, i do not know how you can read it other than it st. official misconduct meaning any wrongful behavior by a public officer in relation to the duties of his or her office. the first paragraph clearly says whenever that wrongful misconduct was, it has to be in relation to his duties to which he was elected. if he has not taken office -- he may have been elected, but if he has not taken office, how can he be guilty of the violation of that first section? >> let's think about the kind of misconduct that could be captured in relation to the duties of office. a person could be about to take office and abuse the power of the office they are about to take by making a threat of what they would use the office for after they take office. a person can engage in wrongful behavior shrub before taking
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office that would cast disrepute on that office as a consequence -- the consequences of that behavior unfold. and an official can be busy preparing to take that office. that is why government ethics office -- government ethics that define this have been defined to include an elected officer as "any person who holds an elected office or has been elected to an elective office, but has not yet taken office." >> how can an act of domestic violence be transferred into saying that is in its conduct in relation to his office? it may well be a violation of the second clausez
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it be an act that is in relation to the duties of the office to which he is elected? >> because his own conviction in paris his ability -- >> [unintelligible] >> there are some jurisdictions that say you cannot take misconduct that occurred before an election and in charge it afterward. but even those jurisdictions have a principle that when someone is convicted of a crime, it is the date of conviction that matters. the reason for that principle -- there are two of them. one of them is that the goal is to protect the office and to protect the public. having a role that when you have something as serious as the conviction of a crime where the conviction occurs during the term, it is to protect that office. the second reason is that the actual conviction is conclusive evidence that the conduct
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occurred. things can be up in the air, and then, or hidden. this is conclusive evidence, and that is what's we saw here. he acted, because -- the mayor acted because he had conclusive evidence of what occurred. even in the jurisdictions that have a rule that say you cannot do that, they have an exception for the conviction of a crime. i am not aware of any situation that says if you're convicted of a crime before your turn, you're off the hook. did the threat come to light during the term that the person is being subject to scrutiny? in this case, it did. >> as we are drilling down on the words, the phrase that
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